R. v. Osolin

R. v. Osolin
Collection
Supreme Court Judgments
Date
1993-12-16
Report
[1993] 4 SCR 595
Case number
22826
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 22826
Decision Content
R. v. Osolin, [1993] 4 S.C.R. 595
Stephen William Osolin Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario
and the Attorney General of Quebec Interveners
Indexed as: R. v. Osolin
File No.: 22826.
1993: June 17; 1993: December 16.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Sexual assault ‑‑ Defence of honest but mistaken belief in consent ‑‑ Section 265(4) of Criminal Code imposing "air of reality" test as threshold to be met before issue of mistaken belief is left to jury ‑‑ Whether s. 265(4) infringes s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 265(4) .
Constitutional law ‑‑ Charter of Rights ‑‑ Trial by jury ‑‑ Sexual assault ‑‑ Defence of honest but mistaken belief in consent ‑‑ Section 265(4) of Criminal Code imposing "air of reality" test as threshold to be met before issue of mistaken belief is left to jury ‑‑ Whether s. 265(4) infringes s. 11 (f) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 265(4) .
Criminal law ‑‑ Evidence ‑‑ Cross‑examination ‑‑ Sexual assault ‑‑ Medical records ‑‑ Complainant's medical records admitted into evidence for limited purpose of determining complainant's competence to testify ‑‑ Notation in medical records indicating that complainant was concerned that her attitude and behaviour might have influenced accused ‑‑ Trial judge not permitting accused to cross‑examine complainant on her medical records to determine "what kind of person the complainant is" ‑‑ Whether cross‑examination should have been permitted for purpose of determining whether there was evidence to support defence of honest but mistaken belief in consent or allegation of fabrication.
Criminal law ‑‑ Defences ‑‑ Defence of honest but mistaken belief in consent ‑‑ Sexual assault ‑‑ Interpretation of s. 265(4) of Criminal Code, R.S.C., 1985, c. C‑46 .
The accused was charged with sexual assault and kidnapping. On the day of the incident, the complainant, a 17‑year‑old girl who had been under psychiatric treatment for depression and anxiety, went with two men, D and S, to B's trailer, where they drank beer. Later in the afternoon, the complainant and D, whom she had dated on a few occasions, had consensual intercourse in a wooded area. After D went home, the accused and his friend M arrived at the trailer and left with B to go to a nearby pub while S and the complainant stayed at the trailer and engaged in sexual intercourse. In the evening, M and the accused came back to the trailer. While the accused drove S some distance away, M attempted to have intercourse with the complainant. She testified that she did not consent to his advances and that he prevented her from getting dressed. She managed to get her underpants on as the accused entered the room. He threw her over his shoulder and carried her out to the car. The complainant testified that she resisted leaving the trailer and asked for her clothes but that the accused put her in the back seat of the car and tore off her underpants. M drove them to a cabin 40 miles away and left. The accused pulled her into a bedroom, tied her up and had sexual intercourse with her. Shortly after 3:30 a.m., an RCMP constable found the complainant on the highway. She was screaming and crying. She was taken to the hospital where her medical examination revealed a number of injuries generally more consistent with sexual assault than consensual intercourse. The police also found a pair of torn women's underpants lying on the ground some 20 feet from the trailer.
At trial, the accused testified that the complainant was an eager although not active participant in all the acts leading up to and including sexual intercourse. She only resisted when he tried to shave her pubic area at the cabin. The accused admitted, however, that he "overrode" her complaints about being forced while naked to leave the trailer. Defence counsel sought to cross‑examine the complainant on her medical records, specifically on a notation indicating that she was concerned that her attitude and behaviour may have influenced the accused to some extent. He indicated that the cross‑examination would be directed toward "what kind of person the complainant is". The trial judge refused to permit the cross‑examination, ruling that the records had been admitted into evidence for the limited purpose of determining the complainant's competence to testify and that to use them for any other purpose would be a violation of the complainant's privacy. He also declined to charge the jury with respect to the defence of honest but mistaken belief in consent. He ruled that in this case there was no "air of reality" to the defence. The accused was found guilty on both counts and his appeal to the Court of Appeal was dismissed. This appeal raises two issues: (1) whether the trial judge erred in restricting the cross‑examination of the complainant on her medical records; and (2) whether the "air of reality" test set out in s. 265(4) of the Criminal Code violates the accused's rights under ss. 11 (d) and 11 (f) of the Canadian Charter of Rights and Freedoms .
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed and a new trial ordered.
(1) Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The trial judge erred in failing to allow the cross‑examination of the complainant on her medical records.
(2) Section 265(4) of the Code does not violate s. 11 (d) or 11 (f) of the Charter .
‑‑‑‑‑‑‑‑‑‑‑‑
Per Cory and Major JJ.: The right to cross‑examine witnesses, which is now protected by ss. 7 and 11 (d) of the Charter , is fundamental to providing a fair trial to an accused. Despite its importance, the right to cross‑examine has never been unlimited and must conform to the basic principle that all evidence must be relevant in order to be admissible. In addition, the probative value of evidence must be weighed against its prejudicial effect. Relevance and probative value must be determined in the context of the purpose for which evidence is tendered. In the context of sexual assaults, this limitation on cross‑examination has been recognized to prevent its use for improper purposes. Both Seaboyer and the new s. 276 of the Criminal Code suggest the factors which should be considered in limiting the scope of cross‑examination of a complainant in a sexual assault trial. Sections 15 and 28 of the Charter guaranteeing equality to men and women, although not determinative, should also be taken into account in determining the reasonable limitations. Generally, a complainant may be cross‑examined for the purpose of eliciting evidence relating to consent and pertaining to credibility when the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice which might flow from it. Cross‑examination for the purpose of showing consent or impugning credibility which relies upon groundless rape myths and fantasized stereotypes is improper and should not be permitted. The trial judge must consider all of the evidence presented at the voir dire to determine if there is a legitimate purpose for the proposed cross‑examination. In each case he must carefully balance the accused's right to a fair trial against the need for reasonable protection of a complainant. If at the conclusion of the voir dire the cross‑examination is permitted then the jury must be advised as to the proper use that can be made of the evidence derived from the cross‑examination. Here, the privacy of the complainant is an interest that merits protection, as does the need for a relationship of confidence between a patient and her psychiatrist, but the cross‑examination on the complainant's medical records, within the guidelines outlined, should have been permitted to ensure a fair trial and to avoid a miscarriage of justice. While the trial judge was correct in refusing to permit cross‑examination for the purpose of determining "what kind of person the complainant is", it was the trial judge's duty to ensure that the accused's rights with regard to cross‑examination were protected. It would have been appropriate to permit cross‑examination on the medical records, in particular the notation, to determine if they would throw any light either on a possible motive for the complainant's allegation that she was the victim of sexual assault or with regard to her conduct which might have led the accused to believe that she was consenting to sexual advances. There was thus a proper purpose for permitting cross‑examination on the medical records. The denial of the opportunity to cross‑examine on these records, and the impossibility of ascertaining what might have been the result of the cross‑examination, make it necessary to order a new trial.
Section 265(4) of the Code simply sets out the basic requirements which are applicable to all defences: a defence should not be put to the jury if a reasonable jury properly instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. In other words, there must be evidence sufficient to give an air of reality to the defence before it can be left with the jury. It is the trial judge who determines if there is sufficient evidence adduced to give rise to a defence. The defence of honest but mistaken belief in consent in a sexual assault trial must meet the same threshold requirement as that demanded of all defences. There must be evidence that gives an air of reality to the accused's argument that he believed the complainant was consenting before the issue goes to the jury. There is no requirement that there be evidence independent of the accused. What is required is that the defence be supported by evidence beyond the mere assertion of a mistaken belief. The defence of honest but mistaken belief in consent can realistically only arise when the accused and the complainant tell essentially the same story and then argue that they interpreted it differently. Where the evidence given is directly opposed as to whether there was consent, the defence simply cannot exist. However, even in the absence of the defence, the jury will nonetheless be bound to acquit if it has a reasonable doubt as to whether there was consent in light of the conflicting evidence on the issue. In this case, the Court of Appeal correctly held that the trial judge erred in finding that the defence of honest but mistaken belief in consent was unavailable on the basis of the accused's evidence alone. However, it erred in finding that there could be no air of reality to the defence on the basis that the complainant had been kidnapped by the accused since there had not been a previous or separate conviction on the kidnapping charge. The mens rea for the kidnapping charge and that for the sexual assault were so closely connected as to be inseparable. The kidnapping could therefore not be used as the basis for rejecting the defence. As there must be a new trial to allow for a cross‑examination on the medical records, it would be inappropriate to discuss whether there was sufficient evidence to justify putting the defence to the jury in light of the fresh evidence that may be forthcoming.
Section 265(4) of the Code does not infringe s. 11 (d) of the Charter . While the air of reality threshold in s. 265(4) creates an evidentiary burden on the accused, in the sense that he must raise sufficient evidence to give the defence an air of reality to justify its presentation to the jury, the burden of proving all the elements of the offence beyond a reasonable doubt rests squarely with the Crown. All criminal defences must meet a threshold requirement of sufficient evidence before the trial judge should leave them with a jury. This does not violate the presumption of innocence. Nor does s. 265(4) infringe s. 11 (f) of the Charter . The requirement that there be an air of reality to the defence of honest but mistaken belief in consent is reasonable and entirely valid. It is only a reaffirmation of an integral part of the judge's role in supervising a jury trial. Whether there is sufficient evidence to raise a defence is a question of law, and therefore is properly in the domain of the judge. There was consequently no violation of the accused's right to a trial by jury.
Per Iacobucci J.: Cory J.'s reasons were agreed with; however, no comment was expressed on the new s. 276 of the Criminal Code .
Per Sopinka J.: Cory J.'s reasons were agreed with, subject to the following reservations. First, no comment was expressed on the new s. 276 of the Criminal Code . Second, with respect to the defence of honest but mistaken belief, s. 265(4) of the Code sets out the basic requirements applicable to all defences. It requires no more of the accused than the discharge of an evidentiary burden to adduce or point to some evidence on the basis of which a reasonable jury properly instructed could acquit. The addition of the term "air of reality" does not help in understanding the duty of a trial judge with respect to this defence and may only create confusion. Third, the defence of honest but mistaken belief is not excluded when the complainant and the accused relate diametrically opposed versions of what occurred. To exclude the defence in these circumstances would rest on the questionable assumption that either the accused's or the complainant's story is a complete account of what occurred. In assessing the evidence of a witness, it is not an all‑or‑nothing proposition. The jury may accept only some of what a witness said, and reject the rest.
Per Lamer C.J.: The trial judge erred in failing to allow the cross‑examination of the complainant on her medical records. The cross‑examination was appropriate because it had a proper purpose ‑‑ namely, to determine whether there was evidence to support a defence of honest but mistaken belief or evidence to support an allegation of fabrication. The denial of the opportunity to cross‑examine on the medical records deprived the accused of his right to a fair trial.
With respect to the defence of honest but mistaken belief, Sopinka J.'s reasons were agreed with.
Per La Forest, Gonthier and McLachlin JJ. (dissenting): Before cross‑examination can be allowed on a complainant's prior sexual conduct, the trial judge must determine whether the defence has demonstrated a potential relevance to the cross‑examination capable of outweighing the damage and invasion of privacy it might cause to the complainant. To be satisfied that the threshold of relevance is met, the trial judge must ensure that the evidence is tendered for a legitimate purpose, and that it logically supports a defence. Here, the only purpose invoked by the defence for cross‑examining the complainant on her medical records was the very sort of improper purpose for which evidence cannot be adduced. The defence's failure to raise a valid reason for the cross‑examination was fatal. In our criminal trial system, the trial judge does not have a duty to ensure that all legitimate grounds of cross‑examination are explored by counsel. Further, even assuming that a court of appeal confronted by an unexplored avenue of cross‑examination which might have led to a reasonable doubt as to guilt should direct a new trial to avoid a miscarriage of justice, the accused is not entitled to a new trial in this case on the ground of denial of cross‑examination since no substantial wrong or miscarriage of justice occurred. On the defence theory that the complainant may have fabricated her story to avoid a confrontation with her parents, there was ample evidence before the jury of the difficult relationship between the complainant and her parents and their disapproval of some of her conduct. On the defence of honest but mistaken belief in consent, there was also a great deal of negative evidence before the jury about the complainant's "attitude and behaviour" on the day in question.
Before any defence can be put to the jury, the evidence must provide a basis for that defence. It must have an "air of reality". In order to give an air of reality to the defence of honest but mistaken belief, there must be: (1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting. The bare assertion of the accused that he believed in consent is not enough to raise the defence; the assertion must be supported to some degree by other evidence or circumstances. The supporting evidence may come from the accused or from other sources. The defence of honest but mistaken belief is not precluded where the evidence consists of two diametrically opposed stories, one alleging lack of consent and the other consent. In rare situations, it is possible for a jury to accept parts of the testimonies of both the complainant and the accused, concluding that notwithstanding lack of actual consent, the accused honestly believed in consent. In this case, there was no evidence, from the accused or from some other source, supporting the accused's assertion of honest belief. Finally, the Court of Appeal did not use the kidnapping charge as a ground for rejecting the defence of honest but mistaken belief. It only said that the evidence of confinement robbed that defence of any foundation.
For the reasons given by Cory J., s. 265(4) of the Code does not violate s. 11 (d) or 11 (f) of the Charter .
Per La Forest and L'Heureux‑Dubé JJ. (dissenting): In criminal cases, the defence normally has no access to the medical records of a witness. Medical records evidence is generally completely marginal to the central issue of a trial. Given the fundamental importance placed on the confidentiality of medical records in our society, and the high degree of prejudice to the witness caused by delving into these records, they should only be disclosed in the rare cases when there is cogent evidence to suggest (1) that the competence of the witness to testify is in serious doubt or the witness's testimony with respect to the particular issue to be decided is unreliable because of the witness's medical condition; and (2) that without such disclosure, there would be serious prejudice to the accused's right to make full answer and defence. Mere suggestion, speculation or possibility raised on the part of the defence that such records may be relevant cannot be sufficient. Fishing expeditions should not be permitted. In the event that disclosure is required, the cross‑examination on the witness's medical records must be restricted to the purpose for which they were introduced. Even when the records contain information that is relevant to other issues to be decided, cross‑examination on such information should, except in extraordinary cases, nonetheless remain impermissible. Trial judges possess the undoubted discretion to both exclude evidence and limit cross‑examination on matters which, although arguably relevant to the issue, are outweighed by their potential to prejudice the trial of the issue. Particularly in the case of complainants in sexual assault trials, there is a serious risk that such information will be used to draw impermissible inferences and encourage the trier of fact to rely on myths about the credibility of sexual assault victims to the prejudice of both the witness and the trial process. Here, the complainant's medical records should not have been disclosed to the accused and admitted into evidence. There was no evidence that the complainant was incapable of giving reliable testimony in general, let alone reliable testimony as to the particular issue to be decided ‑‑ the issue of consent ‑‑ or that the complainant was in fact suffering from a condition that would affect her capacity to give reliable testimony. However, once the medical records were disclosed, the trial judge was correct in restricting the purposes for which they could be used and in concluding that the privacy of the complainant was an important value which should play a role in determining the scope of the use of the medical records.
The accused was not denied the opportunity to make full answer and defence because he was unable to cross‑examine the complainant on her medical records, including the notation. The material in these records was not relevant to the issue of her consent to the sexual assault. On that issue, the jury already had the benefit of the complainant's direct testimony as to the events themselves and the absence of her consent. She was also cross‑examined extensively on this point. There was thus no need to resort to the medical records. On the issue of the accused's honest but mistaken belief in consent, the complainant's thoughts about the sexual assault after the fact are completely irrelevant. The defence normally only arises where the complainant and the accused tell essentially the same story about what occurred but differ in their interpretations as to whether the activity in question amounted to consent. In this case, any mistake of perception or interpretation that might have existed was a matter located solely in the accused's mind. Finally, the material in the medical records concerning the complainant's relationship with her parents was not relevant to the issue of whether she was sexually assaulted. In any event, the jury was already aware of the complainant's difficulties with her parents and the theory of the defence that she invented the story of the assault to avoid repercussions with her parents. It is obvious that the proposed cross‑examination to determine "what kind of person the complainant is" would have been highly prejudicial. Its purpose was to attack the complainant's credibility in a general way by putting before the jury every difficulty in her personal life in the hope that they would then draw negative inferences about her character and credibility. Cross‑examination for this purpose is clearly impermissible. These are precisely the inferences based upon rape myths which work to the prejudice of complainants in sexual assault cases and which Parliament, in enacting s. 276 of the Code, has attempted to prevent. Furthermore, the proposed cross-examination could only have prejudiced the trial by distracting the jury from the narrow issue of consent.
The trial judge was correct in not putting the defence of honest but mistaken belief in consent to the jury. In the circumstances of this case, there was no air of reality to the defence. While it was open to the jury to disbelieve the complainant and either believe or have a reasonable doubt as to the testimony of the accused, the jury was obliged to reach their verdict on the basis of the evidence before them. Had the trial judge left the defence with the jury, he would have been inviting them to speculate on yet a third version of events wholly unsupported by the evidence of either party. To do so would have been an error on the part of the trial judge.
For the reasons given by Cory J., s. 265(4) of the Code does not violate s. 11 (d) or 11 (f) of the Charter .
The reasons of McLachlin J. were substantially agreed with.
Cases Cited
By Cory J.
Considered: R. v. Seaboyer, [1991] 2 S.C.R. 577; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Bulmer, [1987] 1 S.C.R. 782; referred to: Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Anderson (1938), 70 C.C.C. 275; R. v. Rewniak (1949), 93 C.C.C. 142; Abel v. The Queen (1955), 115 C.C.C. 119; R. v. Lindlau (1978), 40 C.C.C. (2d) 47; Titus v. The Queen, [1983] 1 S.C.R. 259; R. v. Anandmalik (1984), 6 O.A.C. 143; R. v. Giffin (1986), 69 A.R. 158; R. v. Wallick (1990), 69 Man. R. (2d) 310; R. v. Potvin, [1989] 1 S.C.R. 525; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Jobidon, [1991] 2 S.C.R. 714; Parnerkar v. The Queen, [1974] S.C.R. 449; R. v. Faid, [1983] 1 S.C.R. 265; Kelsey v. The Queen, [1953] 1 S.C.R. 220; R. v. Squire, [1977] 2 S.C.R. 13; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Brisson v. The Queen, [1982] 2 S.C.R. 227; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Haughton (1992), 11 O.R. (3d) 621; R. v. Guthrie (1985), 20 C.C.C. (3d) 73; Director of Public Prosecutions v. Morgan, [1976] A.C. 182; Bratty v. Attorney‑General for Northern Ireland, [1963] A.C. 386; Perka v. The Queen, [1984] 2 S.C.R. 232.
By Sopinka J.
Referred to: Lee Chun‑Chuen v. The Queen, [1963] 1 All E.R. 73.
By McLachlin J. (dissenting)
R. v. Seaboyer, [1991] 2 S.C.R. 577; Boran v. Wenger, [1942] O.W.N. 185; R. v. Ignat (1965), 53 W.W.R. 248; Majcenic v. Natale, [1968] 1 O.R. 189; Jones v. National Coal Board, [1957] 2 All E.R. 155; Brouillard v. The Queen, [1985] 1 S.C.R. 39; R. v. Turlon (1989), 49 C.C.C. (3d) 186; R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), leave to appeal refused, [1986] 1 S.C.R. xiii; R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256; Yuill v. Yuill, [1945] 1 All E.R. 183; R. v. Bulmer, [1987] 1 S.C.R. 782; Bratty v. Attorney‑General for Northern Ireland, [1963] A.C. 386.
By L'Heureux‑Dubé J. (dissenting)
Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506; R. v. Hawke (1975), 22 C.C.C. (2d) 19; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; McInerney v. MacDonald, [1992] 2 S.C.R. 138; Norberg v. Wynrib, [1992] 2 S.C.R. 226; R. v. Dersch, [1993] 3 S.C.R. 768; R. v. Seaboyer, [1991] 2 S.C.R. 577; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Ross (1993), 121 N.S.R. (2d) 242, leave to appeal refused, [1993] 3 S.C.R. viii; R. v. O'Connor (1992), 18 C.R. (4th) 98; Director of Public Prosecutions v. Morgan, [1976] A.C. 182; Pappajohn v. The Queen, [1980] 2 S.C.R. 120.
Statutes and Regulations Cited
Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, s. 2.
Canadian Charter of Rights and Freedoms, ss. 8 , 11 (d), (f), 15 , 28 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(4) , 276 [am. c. 19 (3rd Supp.), s. 12 ; rep. & sub. 1992, c. 38, s. 2], 276.1 to 276.4 [en. 1992, c. 38, s. 2], 277 [rep. & sub. c. 19 (3rd Supp.), s. 13 ].
Privacy Act, R.S.C., 1985, c. P‑21 .
Authors Cited
Bryant, Alan W. "The Issue of Consent in the Crime of Sexual Assault" (1989), 68 Can. Bar Rev. 94.
Calgary Herald, July 16, 1993, p. A12, "Assault Cases: Women's groups seek tighter rein on defence questioning".
Canada. Report of Task Force established jointly by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System. Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action. Ottawa: Department of Justice Canada, 1992.
Ferguson, Gerry A., and John C. Bouck. Canadian Criminal Jury Instructions, vol. 1, 2nd ed. Vancouver: The Continuing Legal Education, Society of British Columbia, 1989 (loose‑leaf).
Globe and Mail (The), July 15, 1993, p. A7, "B.C. psychiatrist refusing to hand over file: Fears releasing confidential therapy data would hurt patient who alleges sex abuse".
Globe and Mail (The), May 15, 1993, p. D3, "Confidentiality: Balancing justice and medical ethics".
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Scarborough: Carswell, 1992 (loose-leaf).
Holmstrom, Lynda Lytle, and Ann Wolbert Burgess. The Victim of Rape: Institutional Reactions. New Brunswick, U.S.A.: Transaction Books, 1983.
MacKinnon, Catharine A. Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press, 1989.
McCormick's Handbook of the Law of Evidence, 2nd ed. By Edward W. Cleary, General Editor. St. Paul, Minn.: West Publishing Co., 1972.
McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose‑leaf).
Ontario. Commission of Inquiry into the Confidentiality of Health Information. Report of the Commission of Inquiry into the Confidentiality of Health Information, vol. 2. Toronto: The Commission, 1980.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 1A (Tillers rev.). Boston: Little, Brown & Co., 1983.
Wigmore, John Henry. Treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. 2, 3rd ed. Boston: Little, Brown & Co., 1940.
Williams, John M. "Mistake of Fact: The Legacy of Pappajohn v. The Queen" (1985), 63 Can. Bar Rev. 597.
APPEAL from a judgment of the British Columbia Court of Appeal (1991), 7 B.C.A.C. 181, 15 W.A.C. 181, 10 C.R. (4th) 159, dismissing the accused's appeal from his conviction on charges of sexual assault and kidnapping. Appeal allowed and new trial ordered, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
John D. McAlpine, Q.C., and Paul R. Bennett, for the appellant.
Elizabeth Bennett, for the respondent.
Donna R. Valgardson and Nancy L. Irving, for the intervener the Attorney General of Canada.
Susan Chapman, for the intervener the Attorney General for Ontario.
Jacques Gauvin and Daniel Grégoire, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
Lamer C.J. -- I have read the reasons of Justice Cory and concur in his result.
I agree with my colleague that the trial judge erred in refusing to permit cross-examination on the medical records. The cross-examination was appropriate because it had a proper purpose -- to determine whether there was evidence to support a defence of honest but mistaken belief or evidence to support an allegation of fabrication. The denial of the opportunity to cross-examine on the medical records deprived the accused of his right to a fair trial.
With respect to the defence of mistaken belief, I am in agreement with my colleague, Justice Sopinka.
Accordingly, I would allow the appeal and order a new trial on the ground that the trial judge erred in failing to allow the cross-examination of the complainant on her medical records.
The reasons of La Forest and L'Heureux-Dubé JJ. were delivered by
L'Heureux-Dubé J. (dissenting) -- I have had the advantage of the reasons of my colleagues and for the following reasons I do not agree with Cory J.'s reasons nor with his disposition of the appeal. I agree substantially with McLachlin J.'s reasons as well as the result she reaches. However, I wish to deal with additional points as well as different considerations on the points dealt with by my colleagues.
I will discuss the two issues raised in this appeal in the following order. First, does s. 265(4) of the Criminal Code, R.S.C., 1985, c. C-46 , infringe the rights of the accused as guaranteed by s. 11 (d) or 11 (f) of the Canadian Charter of Rights and Freedoms ? Second, did the trial judge err in restricting the cross-examination of the complainant on her medical records? This second issue raises, in turn, questions concerning the privacy interest in medical records and the particular considerations which surround complainants in sexual assault trials.
Constitutionality of Section 265(4) of the Criminal Code
On the issue of the constitutionality of s. 265(4) of the Criminal Code , I agree with my colleagues' reasons that the section infringes neither s. 11 (d) nor s. 11 (f) of the Charter . The general rule is that defences should not be put to the jury which do not arise on the evidence. As with any defence, this section simply requires that, in the case of assault, there be a factual foundation, or, to put it more colloquially, an "air of reality" to a defence before the trial judge is required to leave it with the jury. Thus, the section conforms completely with normal trial procedure and the interests in ensuring that the jury is not distracted by extraneous matters in the trial of an issue.
As to its relevance in this particular case, in my opinion, the defence of mistaken belief in consent was completely unwarranted given both the evidence and the manner in which the defence was conducted. This case involves, as the trial judge put it, "a straight issue of consent or no consent". The complainant and the appellant each testified as to the events in issue. The evidence of each concerning the events preceding the assault was consistent up to a certain point. Specifically, there is no question that the complainant was taken by the appellant to a cabin 40 miles away in the woods in the winter without her clothes on; nor does the appellant contest that he overrode her objections in doing so.
However, their versions differed completely in respect of consent to sexual relations. The defence proceeded entirely on the basis that the complainant willingly and eagerly consented to sexual relations, not that he may have been mistaken about whether or not she consented. By contrast, the complainant testified that at no time did she consent to the sexual activity in question but had been subject to a series of assaults beginning when the appellant abducted her in a car. This testimony was corroborated by both physical evidence and the testimony of other witnesses.
By way of example, I shall recount but a portion of the evidence. The complainant testified that her panties had been ripped off her when she was taken away by the appellant in the car; ripped panties were found by the police near where the car had been parked. She testified that she was struck on the head while she was taken into the car and bound by the wrists when she was assaulted; medical evidence confirmed that she had bruises on her wrists and on her head. In addition, the police officer who found her naked by the side of the road at 3:30 a.m. testified that she cried uncontrollably for two hours afterwards and vomited in the police station.
Under these circumstances, there was no air of reality to the defence of mistaken belief in consent. The jury found the appellant guilty of sexual assault. While it was open to the jury to disbelieve the complainant and either believe or have a reasonable doubt as to the testimony of the appellant, the jury was obliged to reach their verdict on the basis of the evidence before them. Had the trial judge left the defence with the jury, he would have been inviting them to speculate on yet a third version of events wholly unsupported by the evidence of either party. To do so would have been an error on the part of the trial judge, subject to review on appeal.
Cross-examination on Medical Records
In this case, there was no challenge to the ability of the complainant to testify at the outset; the trial judge found her "quite capable of testifying" and noted that her competency had never been called into question. Nonetheless, because the appellant was aware that she had a history of hospital admissions for psychiatric problems, he sought an order for the production of the complainant's medical records. The trial judge decided, on the basis of Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 (H.L.), and R. v. Hawke (1975), 22 C.C.C. (2d) 19 (Ont. C.A.), that in order to permit the accused the opportunity of full answer and defence, the medical records of the complainant should be made available to the defence. This was done for the sole purpose of permitting the defence to attempt to establish that the complainant suffered from a medical or psychiatric condition that rendered her testimony unreliable. Despite free use of the information in the records and the testimony of its own psychiatric expert, the defence was unable to succeed in demonstrating that the complainant was, for this reason, an unreliable witness.
However, having failed at this objective, once in possession of the medical records, the defence then argued that because the records were allowed in, it should be permitted unrestricted cross-examination on them to challenge the credibility of the complainant on the issue of consent. The trial judge refused to allow such cross-examination on the grounds that it would be a violation of the complainant's privacy. The Court of Appeal held that the trial judge had erred in refusing the cross-examination because of the complainant's right to privacy, but dismissed this ground of appeal because it was unable to ascertain the questions that the appellant's counsel intended to ask.
Cory J. is of the view that the trial judge should have permitted cross-examination on the July 9th notation in the medical records for the purpose of determining if there was an air of reality to the appellant's defence of mistaken belief in the complainant's consent.
I totally disagree with my colleague Cory J. on the issue of the cross-examination of the complainant on her medical records, as does my colleague McLachlin J. Furthermore, there is a prior issue which must be addressed: whether the records should have been disclosed to the appellant and admitted into evidence at all in the circumstances. In this case, the Crown has not cross-appealed the order for the production of the complainant's medical records to the appellant, although prior to the disclosure order, counsel argued vigorously before the trial judge that they were totally irrelevant and that their use would be highly prejudicial to the complainant and sidetrack the trial of the issue. However, as many of the concerns which I shall outline below are relevant to both the question of disclosure and the scope of cross-examination in the event that disclosure is ordered, I find it unavoidable to address the matter of disclosure to some degree as well in this case.
It must be recalled at the outset that, as is the case with witnesses in any trial, the defence ordinarily has no access to the medical records of the complainant in a sexual assault case. The reason is clear: such information is, in the vast majority of cases, irrelevant to the issue to be determined. As a matter of policy and procedure we do not permit random fishing expeditions and less so into matters that cannot be expected to have any bearing on the trial. Moreover, such an invasion of the privacy of an individual goes against the policy of privileged communications between doctor and patient which some provinces, Quebec in particular, do protect unless a superior interest is at stake.
Thus the question becomes, whether, upon the release of such records, the right of the accused to make full answer and defence entails the right to cross-examine on information generated from medical records that, except for the extraordinary circumstance of a challenge to the competence of a witness or the reliability of her testimony, would be completely unavailable and even unknown to the accused. In my opinion it does not. Moreover, in my view, the starting point to the examination of this question is not the wide ability of the accused to cross-examine the complainant, but, rather, the following two considerations which arise much earlier in the trial process: the fundamental entitlement of us all, guaranteed by s. 8 of the Charter , to privacy and control over personal information obtained to facilitate medical treatment and the principle that information that is not relevant to an issue is to be excluded.
Hence, the following two interrelated questions must b